Court of Appeal (Qld)|1997-05-08|Before: MacRossan CJ, Fitzgerald P, Pherson JA

R v. Irvine & Attorney-General of Queensland [1997] QCA 138 (8 May 1997)

REFERENCE UNDER SECTION 669A OF THE CRIMINAL CODE

The respondent was a 26 year old at the time of the offence. He had a criminal history involving, however, matters of a different kind. There are a number of offences starting from the time he was about a 20 year old, drug offences and offences of dishonesty as well as a breach of Court orders. Nothing of a similar kind appears in his history.

The deceased child, the respondent and the woman with whom the respondent was living - the mother of the child - were together in a household which was a disturbed one.

The Judge who sentenced below obviously thought that the situation of frustration in which the respondent was placed was deserving of some sympathy, and that appears in the remarks he made when he sentenced the respondent.

The respondent had not initially been under suspicion for the child's death, although it was obvious to persons who endeavoured to give aid to the child that the death, as it occurred, was caused by violent action. It was within the category sometimes described as "violent syndrome infant death".

The respondent, having not initially made any admissions, eventually stated that the child had been crying and he was left there to look after it in the absence of the child's mother. He made some attempts to placate the child and when that did not succeed, he shook the child. He described it as being like "shaking a milkshake", but he said with the baby's head supported, because of his consciousness that that was a vulnerable point.

However, he shook the child sufficiently to cause its death shortly afterwards. The shaking, then, of the child, "like a milkshake" in his words, was clearly excessive. However, the respondent pleaded guilty, so there is no issue upon that point. It was described below as a death caused by momentary loss of control.

Below, and before us, reference has been made to other cases, particularly the matter of Korin referred to in the record, and Ross. We have been referred also to Rainbird, CA No 209 of 1989.

When the vulnerability of children in the care of their parents or others is considered and the policy of the law with its concern for human life is regarded, it is obvious that appropriate deterrence must be maintained against causing the death of vulnerable infants.

The effect of deterrence in this context is extremely important.

When the matter was argued below the prosecutor at one stage referred to a case - it was Korin - where the sentence had been eight years imprisonment with a recommendation for parole after three, and then referred to a second matter where the sentence was six years with a recommendation for parole after 18 months, adding his submission, that the matter should be regarded as falling somewhere between those two.

What the Judge did in his sentence was to impose a term of five years, combined with a parole recommendation of nine months. This clearly was not one which matched the submission which the prosecutor at that point had made below.

Later on, in the course of discussions during the sentencing process, the Judge attributed a submission to the Crown of a range starting off about five or six years. He was clearly putting it approximately at that point, but at that later stage counsel for the Crown did not intervene to make any correction.

What this Court is now confronted with, is a sentence of five years imprisonment combined with a parole recommendation for nine months, and a suggestion made by counsel appearing for the Attorney-General, that it is unduly light and should be altered to a sentence of five years with a non-parole period of 18 months.

It seems to me, on a comparison with other decisions of this Court, that the sentence imposed below was certainly not a heavy one for the actions involved.

The difficulty which then must be regarded is the extent of the challenge which the Attorney-General makes to it on appeal. The challenge here advanced is a limited one.

What the prosecution urged below and what the Attorney-General, through his counsel, argues here, raise significant questions in terms of the action we should take in dealing with a sentence appeal.

Authorities of this Court, such as Melano and others that have followed it, indicate that the Court does not regard itself as justified, on Attorney's appeals, in making minor adjustments to the amounts of otherwise substantial sentences.

There is a distinct impression that in sentencing below the sentencing Judge imposed a sentence which would have to be described as at the bottom end of the range in fixing the head sentence, and he has added to that a parole recommendation which, again, would have to be regarded as a generous one to the respondent in terms of the consequence of the respondent's actions.

Now, those considerations might prompt the Court in one particular direction in different circumstances, but having in mind the reluctance against lightly interfering which this Court regards itself as enjoined to apply on Attorney-General's appeals, and the limited amount of adjustment which, it is urged, would be appropriate to make in this case, in my opinion the Court should not interfere and I would refuse the appeal.

THE PRESIDENT: In my opinion the sentence imposed was inappropriately low, probably because circumstances of mitigation were taken into account twice - once to reduce the head sentence and again to reduce the period after which the respondent is to be eligible for consideration for parole.

However, the Court should only interfere on an appeal against sentence by the Attorney-General in the circumstances referred to in Melano. The prosecution attitude before the sentencing Judge, the Attorney-General's attitude in this Court concerning the appropriate level of sentence, should ordinarily inhibit this Court's consideration.

If the prosecution and the Attorney-General accept the level of sentence as appropriate, the Court will usually be reluctant to impose a heavier sentence.

In considering whether to interfere, this Court will also be influenced by the extent of the increase put forward by the Attorney-General as appropriate and will be disinclined to interfere if the sentence sought is not sufficiently different from that imposed by the sentencing Judge.

It follows, in my opinion, that the Court should dismiss this appeal. I agree with the Chief Justice.

R v. Irvine & Attorney-General of Queensland [1997] QCA 138 (8 May 1997)

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R v. Irvine & Attorney-General of Queensland [1997] QCA 138 (8 May 1997)